Request to halt strip-club law is denied

Updated 1:43 pm, Tuesday, April 30, 2013

Chief U.S. District Judge Fred Biery wrote of the case: "Thus, the age-old question, now with constitutional implications, is: 'Does Size Matter?'"

Chief U.S. District Judge Fred Biery wrote of the case: "Thus, the age-old question, now with constitutional implications, is: 'Does Size Matter?'"

Request to halt strip-club law is denied

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In an opinion peppered with double-entendres, references to famous writers, the Bible and a San Antonio contortionist, Chief U.S. District Judge Fred Biery on Monday denied a request by strip clubs to stop the city from enforcing a new ordinance requiring entertainers to use bikini tops instead of pasties.

The judge, who oversaw a similar fight a decade ago between the parties, titled the opinion the “itsy bitsy teeny weeny bikini top v. the (more) itsy bitsy teeny weeny pastie.” It includes a reference to contortionist Miss Wiggles, who gave fully clothed but risqué performances in the 1960s at the Eastwood Country Club here.

“I think Judge Biery's decision is correct as a legal matter, but his opinion fails if he was attempting to be witty or attempting to write 'tongue in cheek,' and his use of double-entendres largely fails as humor and appears almost intended to offend,” said Michael Ariens, a law professor at St. Mary's University School of Law. “His footnotes, which cite Shakespeare, the Bible and 'To Kill A Mockingbird,' seem less erudite than a matter of showing off.”

Another law professor agreed.

“There's nothing wrong with it in any formal sense,” said Steven Lubet, who teaches ethics at Northwestern School of Law in suburban Chicago. “But it is seldom a good idea because the issues are very serious and the people involved often don't appreciate humor in decision-making.”

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The strip clubs' lawyer, despite being disappointed with the ruling, called Biery's opinion “one of the most entertaining I've ever seen.

“It's almost like getting tickled to death,” said attorney Luke Lirot of Florida.

Mick McKamie, a lawyer representing the city in the case, called the opinion “interesting” and noted that the judge had a more businesslike, serious tone in an appendix attached to the opinion that took into account legal and technical arguments of the case.

In summarizing the case, Biery wrote that an ordinance dealing with semi-nude dancing has again “fallen in the court's lap.”

“Thus, the age-old question, now with constitutional implications, is: “Does size matter?” the judge wrote, referring to the coverings.

He added that the clubs “clothe themselves in the First Amendment to provide cover against another naked grab of unconstitutional power.”

“The court infers plaintiffs fear enforcement of the ordinance would strip them of their profits, affecting their bottom line,” the opinion states. “Conversely, the city asserts these businesses contribute to reduced property values, violent crime, increased drug sales, prostitution and other sex crimes and therefore need to be girdled more tightly. Plaintiffs, and by extension their customers, seek an erection of a constitutional wall separating themselves from the regulatory power of city government.”

The ruling doesn't end the lawsuit filed in January by 13 strip clubs, which allege that the city is infringing on constitutional rights to free expression. A full-blown trial still could take place, unless the clubs settle with the city or comply.

Lirot said he will speak with his clients about what to do.

“I guess the options are either change the format or apply for licensing while the challenge continues,” said Lirot, who is on the board of directors of Houston-based Rick's Cabarets, one of the plaintiffs that operates a club in San Antonio.

McKamie said that “if there are insurmountable logistical issues, we'll work with them on those, but the city is ready to enforce the ordinance right away.” The San Antonio Police Department is ready to accept applications for licenses, he said.

Late last year, the city amended its human display ordinance to require more covering of female breasts.

If they choose not to have dancers wear bikini tops, the clubs will be treated as sexually oriented businesses and be subjected to greater regulation, including licensing, background checks of employees and wearing ID badge wristlets or anklets. The ordinance also increased penalties for violations from a class A misdemeanor to a class C misdemeanor, with fines and possible jail time.

In 2003, the city and the clubs fought before Biery over a prior version of the ordinance. That case ended with a settlement in which dark or obstructed VIP rooms, nude dancing and lap dances were banned if completely topless. But the “topless” clubs found a loophole in the previous ordinance by having entertainers wear pasties that allowed them to continue providing lap dances.

In the current case, Biery found the clubs fell short of proving elements necessary to obtain a preliminary injunction, and he denied the clubs' request for such a court order.

He also said the clubs failed to show that semi-nude erotic dancing does not have adverse secondary effects.

“While the court finds these businesses to be nefarious magnets of mischief, the court doubts several square inches of fabric will stanch the flow of violence and other secondary effects emanating from these businesses,” Biery wrote. “Indeed, this case exposes the underbelly of America's Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis. Alcohol, drugs, testosterone, guns and knives are more likely the causative agents than the female breast, proving once again that humans are a peculiar lot.”

And he went further: “Should the parties choose to string this case out to trial on the merits, the court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.”